US women lose not just abortion rights but more

Those in deep slumber in America were rudely awakened one day this May by a leaked draft that the Supreme Court was in the final process of giving a finishing touch to overturning Roe v Wade, a landmark 7 to 2 decision in 1973 that bestowed the right to abortion. Five Justices appointed by Republicans joined the majority to deliver that historic verdict. But, on Friday, no amount of civil and political outcry could formally stop the United States Supreme Court taking away what had been on the statute books for close to fifty years by a 6 to 3 majority along ideological lines.

And no small thanks to the person who made this possible—the 45th President, Donald Trump, who during his four-year tenure packed three Conservatives on the highest bench. Trump may take credit for the tsunami that has struck the country but it would be totally disingenuous if he maintained that he had a consistent stance on abortion or abortion rights of women.

The larger debate in America today, however, is not just confined to the Supreme Court taking away what many believe is the fundamental right of a woman; but what else could be in store in a country that sticks its neck out for fundamental rights and rights of privacy.

The 1973 ruling of the highest court gave women an absolute right to an abortion in the first tri-semester (three months) of pregnancy, restrictions in the second tri-semester and prohibitions in the third. But conservative state legislatures have been paring down access with one count having some 26 states with varying restrictions on the procedures. But in the current ruling, the majority of the Justices upheld the state of Mississippi’s ban on abortion after 15 weeks in Dobbs v Jackson Women’s Health Organisation.

Also read: US abortion ruling triggers global debate, outrage; polarises activists

Five Justices including Samuel Alito who wrote the judgement were with the state and Chief Justice John Roberts concurred with his five colleagues but maintained that he would limit it to only the Mississippi law and not go to the extent of overturning Roe per se. The three Justices in the minority said their disagreement was “with sorrow—for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection”.

The Justices in the minority—Stephen Breyer, Sonia Sotomayor and Elena Kagan—maintained that the decision “breaches a core rule-of-law principle, designed to promote constancy in the law… In doing all of that, it places in jeopardy other rights from contraception to same sex intimacy and marriage. And finally, it undermines the court’s legitimacy”.

If there was outrage from the liberals and the Democrats starting with President Joseph Biden, the response from Republicans was a mixed bag—Trump took credit but did not go on a bragging spree; Conservative and Evangelical Christians hailed the verdict but others in the Grand Old Party were subdued, perhaps keeping in mind the political ramifications of a decision that comes barely five months to go for the mid-term elections of November.

Political and legal pundits say that normally the Supreme Court expands on a right and very rare for it to go back and reverse its own legal judgement and in the process setting off uncertainties that have rarely been witnessed.

According to the Guttmacher Institute, there are 13 states that have Trigger Laws or legislations that could immediately go into effect now that Roe v Wade has been overturned. And these states would include Arkansas, Kentucky, Louisiana, Mississippi, Oklahoma and Texas. And there are states like Alabama, Arizona, Florida and Wisconsin where there are pre-Roe laws—not under judicial scrutiny—that could return. All of this begs another crucial question: would inter-state travel for abortions be illegal and punishable along with those providing facilities?

The apprehension in many medical and political circles is that a law banning abortion could impact not just all women but particularly those among the minorities such as African American and Hispanic and that the economically disadvantaged could end up resorting to crude procedures into their own hands or at the mercy of quacks as used to happen in the earlier eras. Add to this the internet age, when abortion pills and procedures would be freely available adding to the element of uncertainty as well as dubious or no legal avenues possible to prosecute those indulging in blatant fraud.

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Not all in the Grand Old Party will be celebrating the latest Supreme Court verdict, especially when nearly two-thirds of Americans in opinion surveys have clearly said that they would want to keep abortion legal in all or in most cases. Only 37 per cent in a poll last month have said that abortion should be illegal in all or most cases. The seasoned in the GOP will also be concerned about the judicial over-reach of the Supreme Court.

Take a look at what Justice Clarence Thomas had to say: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell”, a clear reference to earlier decisions of the Court on the right to contraception, the repeal of anti-sodomy laws, and the legalisation of same-sex marriage. To this add Thursday’s striking down of a New York law banning carrying concealed weapons, the picture would seem to be complete.

President Biden and Democrats have an opportunity but also a huge challenge on their hands and something that is not just confined to electing members to House of Representatives and the Senate. It also involves packing state legislatures and Governor mansions. “Voters need to make their voices heard. This fall, we must elect more senators and representatives who will codify a woman’s right to choose into federal law once again. Elect more state leaders to protect this right… This fall, Roe is on the ballot. Personal freedoms are on the ballot”, Biden said. “You can have the final word. This is not over”.

In one sense it would seems that nearly everything else is off the table right now for the November elections—inflation, price of gasoline, Covid, economic recovery plans and perhaps to a small extent Ukraine and Russia. At one time, it seemed that guns and assault weapons were on the election map; now that too is off thanks to the Congressional Bill that will be reaching the President’s desk soon. Right now it is women’s right to abortion and in all other things that Conservatives may have up their sleeves.

To negate anything at the state level, the Biden White House will have to come up with a federal law with enough Democrats in the House and Senate to get legislations through. The Republicans are just looking at a handful in the House to get back majority—five seats by one reckoning; and one seat in the Senate to push them over the top. It is indeed an uphill task for Democrats in November 2022 for the party seems to be in search of an effective messenger to get the message across. Whether it is a Federal Law or any effort to add more justices to the Supreme Court, President Biden needs only one thing—numbers. With his approval ratings in the 30s, the chances of meeting this objective, especially 60 in the Senate, is between one of three: fat, slim or none.

The writer was a former senior journalist in Washington covering North America and the United Nations

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal)